Separation of Power in India
SYMBIOSIS LAW SCHOOL, PUNE
Legal research and methodology
“SEPARATION OF POWER IN INDIAN CONTEXT”
“FUNCTIONAL OVERLAPPING”
Submitted by: Prashant Kumar Singh, LL.M. 1st yr. Roll No. 35, SLS, Pune
Separation of powers in Indian context:
1-“Doctrine of separation of powers is structural rather than functional.”
2-In India not only there is a ‘functional overlapping’ but there is ‘personnel overlapping’ also.
Abstract:
The Supreme Court applies the structural provisions of the Constitution by relying on an
Overarching framework of “separation of powers.” In Indian Constitution, there are mentioned provisions in relation to separation of power but there is functional overlapping.
These theories rely on a freestanding separation of powers principle derived from the structure of the document as a whole, both contradict the idea that the Indian Constitution is a “bundle of compromises” that interpreters must respect if they are to show fidelity to the Constitution making process. The historical record reveals that the founding generation had no single baseline against which to measure what “the separation of powers” would have required in the abstract.
Doctrine of Separation of Powers in India:
Development:
In India, the doctrine cannot claim any historical background. The legislature did not appear as a body separate from the executive till the middle of 19th century. The doctrine of separation of powers has not been accorded a constitutional status. It was only after the independence that a
Legal research and methodology
“SEPARATION OF POWER IN INDIAN CONTEXT”
“FUNCTIONAL OVERLAPPING”
Submitted by: Prashant Kumar Singh, LL.M. 1st yr. Roll No. 35, SLS, Pune
Separation of powers in Indian context:
1-“Doctrine of separation of powers is structural rather than functional.”
2-In India not only there is a ‘functional overlapping’ but there is ‘personnel overlapping’ also.
Abstract:
The Supreme Court applies the structural provisions of the Constitution by relying on an
Overarching framework of “separation of powers.” In Indian Constitution, there are mentioned provisions in relation to separation of power but there is functional overlapping.
These theories rely on a freestanding separation of powers principle derived from the structure of the document as a whole, both contradict the idea that the Indian Constitution is a “bundle of compromises” that interpreters must respect if they are to show fidelity to the Constitution making process. The historical record reveals that the founding generation had no single baseline against which to measure what “the separation of powers” would have required in the abstract.
Doctrine of Separation of Powers in India:
Development:
In India, the doctrine cannot claim any historical background. The legislature did not appear as a body separate from the executive till the middle of 19th century. The doctrine of separation of powers has not been accorded a constitutional status. It was only after the independence that a
Bibliography: [ 12 ]. AIR 1990 SC 1277: (1990) 3 SCC 223. [ 13 ]. AIR 2003 SC 739: (2003) 2 SCC 45: (2003) 1 KLT 192. [ 17 ]. 1959 SCR 229: see also Jayanti Lal v S.M. Ram, AIR 1964 SC 649. [ 21 ]. (1975) supp SCC 1, 260. [ 22 ]. (1975) supp SCC 1: AIR 1975 SC 2299. [ 23 ]. (1973) 4 SCC 225: AIR 1973 SC 1461.